Connecticut Recreational Cannabis: Drug Testing Impacts

June 25, 2021

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The following article is not offered as legal advice but is instead offered for informational purposes.  First Advantage is not a law firm and does not offer legal advice.  The following article is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice.  First Advantage makes no assurances regarding the accuracy, completeness, currency or utility of the following information.  Regulatory developments and impacts are continuing to evolve in this area.

On June 22, 2021 Governor Ned Lamont signed Senate Bill 1201, the Act Concerning Responsible and Equitable Regulation of Adult-use Cannabis (the “New Law”), legalizing recreational marijuana use in Connecticut. When the law takes effect July 1, 2021, using recreational marijuana will be legal and adults 21 and older will be allowed to possess up to one and a half ounces.[1][2]

Anti-discrimination and Exemptions:

Under the New Law, Employers cannot discharge or take any adverse action against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee does or does not use cannabis products outside of the workplace unless such action is taken pursuant to a legally established workplace policy. Moreover, employers cannot discharge or take adverse employment action against an employee or applicant because said individual had or had not used cannabis products outside of the workplace before such individual was employed by the employer, unless failing to do so would put the employer in violation of a federal contract or cause them to lose federal funding.

However, the above does not apply to exempted employers, exempted employees, or any employee who holds or is applying for an exempted position. Exempted employers include those in the following industries: mining, construction, manufacturing, transportation, educational services, healthcare, social services, justice activities, national security, and international affairs.

Exempted positions include:

  • Firefighters;
  • Emergency medical technicians;
  • Police or peace officers in a position with law enforcement or investigative function at a
  • state or local agency or in a position with the Department of Correction involving direct
  • contact with inmates;
  • Positions requiring the operation of a motor vehicle for which federal and/or state law
  • requires the employee to submit to screening tests, such as a position requiring a CDL or
  • any position subject to Part 40;
  • Positions requiring certification of completion of a course in construction safety and
  • health approved by OSHA;
  • Positions requiring a federal DOD or DOE national security clearance;
  • Positions where the Bill is inconsistent or otherwise conflicts with the provisions of an
  • employment contract or collective bargaining agreement;
  • Positions where the Bill would be inconsistent with or otherwise in conflict with federal
  • law;
  • Positions funded in whole or in part by a federal grant;
  • Positions requiring certification of completion of a course in construction safety and
  • health approved by OSHA;
  • Positions requiring the supervision or care of children, medical patients, or vulnerable
  • persons;
  • Positions with the potential to adversely impact the health or safety of employees or
  • members of the public, in the determination of the employer;
  • Positions at a nonprofit organization or corporation where the primary purpose is to
  • discourage the use of cannabis products or any other drug by the general public; and
  • Positions with an exempt employer.

Pre-Employment and Employment Drug Testing

In addition to employers staying mindful of existing Connecticut laws restricting drug testing, the New Law further adds and clarifies pre-employment and employment drug testing as follows.

Any drug test of non-exempt prospective or existing employee that yields a positive result solely for marijuana shall not be the sole basis for an employer’s refusal to employ, to continue

to employ, or penalize an employee/applicant unless:

  • Failing to do so would cause the employer to violate a federal contract or cause it to lose federal funding;
  • The employer “reasonably suspects” that an employee is using cannabis while engaged in the performance of their work;
  • The employee manifests specific, articulable symptoms of drug impairment while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position; or,
  • Except as provided in the medical cannabis law, the drug test was pursuant to a random policy pursuant to section 98 subsection b subdivision 1 of the New Law or was of an applicant with a conditional job offer where the employer has established a policy that a positive drug test for marijuana may result in adverse employment action.

Moreover, the New Law does not apply to testing, conditions for hiring, or conditions for employment required by:

  • Any DOT regulation if such regulation requires applicant testing or accordance with 49
  • CFR Part 40;
  • Any state agency regulations that adopt federal regulations;
  • Any contract entered into between the federal government and an employer that requires drug testing of prospective employees as a condition of receiving the contract;
  • Any grant of financial assistance from the federal government that requires applicant drug testing as a condition of receiving the grant;
  • Any federal law or state statute, regulation, or order that requires applicant drug testing
  • for safety or security purposes; or
  • Any applicant whose prospective employer is party to a valid collective bargaining agreement that specifically addresses drug testing, conditions of hiring, or conditions of continued employment of such applicant.

Employment Action

Employers can still take appropriate employment action based on reasonable suspicion of an employee’s usage of cannabis while engaged in the performance of work or on call, or upon determining that an employee “manifests specific, articulable symptoms of drug impairment” while working or on call that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including, but not limited to:

  • Symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment [or] machinery;
  • Disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property;
  • Disruption of a production or manufacturing process; or,
  • Carelessness that results in any injury to the employee or others.

 

Drug-Free Workplace

 

It bears noting that employers are still free to maintain a drug free workplace and associated policies prohibiting the possession, use, or other consumption of cannabis by an employee, subject to certain exceptions, including existing protections for qualified patients under the state’s medicinal marijuana law. Employers must put such policies in writing and make them available to employees and prospective employees.

[1] CT Senate Bill 1201: https://www.cga.ct.gov/2021/TOB/S/PDF/2021SB-01201-R00-SB.PDF

[2] Sources: Current Consulting and Senate Bill 1201

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